The events which led to the judicial examination of the case occurred in 1997 in Wrocław. At 3 a.m. the Police entered the premises occupied by the applicants. The premises were commonly known as the ‘69 Area’ squat. The squat was inhabited mainly by hippies, anarchists and punks famous for various social, artistic and alternative cultural initiatives.

The Police took action after they had noticed an unlocked car parked in the street. The officers, wanting to find the owner of the vehicle, ordered everyone (about 15 persons) present at the premises to go outside and stand against the wall. According to the applicants, they were called ‘scum’, ‘slobs’ and ‘queers’. Also, the officers used batons against them causing multiple bruises on the applicants’ bodies.

Prosecutors found no crime

The injured filed an official report of a suspicion that a crime might have been committed. Yet, the Prosecutor’s office considered that the officers’ conduct was proportionate and justified by the circumstances. In the reasons [to the Prosecutor’s decision] it was held that ‘social status of the young people, namely the fact that they are students, results in imposing certain duties thereupon. These include, in particular, the duty to cooperate with the Police in the interest of law and order’. Since domestic law enforcement authorities had decided the case in favour of the Police, P. Rachwalski and A. Ferenc decided to bring the matter before the Strasburg Court. They argued that Poland infringed the absolute prohibition of degrading and inhumane treatment and the right to respect one’s private and family life (set forth by Articles 3 and 8 of the Convention, respectively).

Sense of vulnerability and powerlessness

The Court’s ruling affirmed the applicants’ claims. Above all, ECHR pointed out a disproportionate nature of the Police action. The means employed by the officers (beating with police batons, calling a group of officers with dogs as backup and ordering the residents to leave the premises in the middle of the night) were inappropriate with regard to the purpose of the action (securing an unlocked car). It should also be noted that the Applicants did not behave aggressively towards the Police and posed no threat to the public order.

The occurrence resulted in applicants experiencing ‘a profound sense of vulnerability, powerlessness and affront’ (ECHR judgement, para. 61). The Court decided that such a situation could be considered as humiliating for the applicants thus infringing the prohibition of degrading treatment within the meaning of Article 3 of the Convention.

New standards of police search?

Additionally, the Court held that in the case of Rachwalski i Ferenc v. Poland the right to private life protected under Article 8 of the Convention (right to privacy) had also been violated. The protection granted by virtue of the said Article ensures, inter alia, inviolability of a dwelling.

In the light of the ECHR case law, the term ‘home’ means a physically defined area in which the private and family life of an individual develops. Although it was not explicitly emphasised by the Court, nothing in its judgement indicates that the squat occupied by the applicant could not be perceived as such.

The Court underlined that Polish law provides the means aiming at securing private life from public authorities interference. An example is Article 221 of the Code of Criminal Procedure (kpk) providing that search of an inhabited premises can be conducted at night time only in emergency situations; night time means a period between 10 pm and 6 am. According to the Court’s assessment, the intention to find the owner of an unlocked car parked in the street was not a circumstance justifying appropriateness of the Police intervention and the search performed.

Moreover, the Court emphasised that in situations similar to the one experienced by the applicants there was a high risk of an abuse of power and human dignity. The Court reiterated the standard set out in the case of Kučera v. Slovakia (application no. 48666/99, judgment of 17 July 2007) concerning the forcible entry of a special police unit to the defendant’s premises at 6 am. In the Kučera case, ECHR indicated that it was necessary to put in place special safeguards in order to avoid any possible abuse [of power by intervening Police] and to ensure the effective protection of a person’s rights under Article 8 of the Convention. Such safeguards might include the adoption of regulatory measures which confine the Police ability to enter the premises by, for instance, ensuring (i) the presence of an impartial person during the operation or (ii) the obtaining the owner’s clear consent as a pre-condition to entering his or her premises.

The judgment in the case of Rachwalski i Ferenc v. Poland is a source of guidelines regarding actions of the Police and other law enforcement authorities. The Court once again underlined that the prohibition of abuse of authority and the requirement of proportionality of the actions taken should be the fundamental principles of the Police conduct. The judgment also forces the lawmakers to consider outlying more detailed rules of search.

Adam Bodnar, PhD
The author is Head of the Legal Department and Secretary of the Board of the Helsinki Foundation for Human Rights.

Barbara Grabowska
The author is a lawyer with the Helsinki Foundation for Human Rights Strategic Litigation Programme.

translation: Piotr Mleczko